RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 May 2005
      DOCKET NUMBER:  AR20040005240


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret V. Thompson          |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, Reserve Component Survivor Benefit
Plan (RCSBP) benefits based on the death of her deceased husband, a former
service member (FSM).

2.  The applicant states, in effect, that she would like to see if she is
eligible for any benefits based on her husband’s retirement points.

3.  The applicant provides a death certificate in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 December 2000, upon the death of her husband.  The
application submitted in this case is dated 2 August 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The FSM’s record confirms that he served on active duty in the Regular
Army, in both an enlisted and warrant officer status, during two separate
periods between 1967 and 1985.

4.  On 25 August 1986, after a break in service, the FSM entered the United
States Army Reserve (USAR).  The record shows the applicant earned no
additional qualifying years of service for retirement subsequent to his
entry into the USAR.

5.  On 28 December 2000, the FSM died at the age of 52.

6.  In connection with the processing of this case, and advisory opinion
was obtained from the Supervisor, Retirements and Annuities Branch, Human
Resources Command (HRC), St. Louis, Missouri.  This official indicated that
the RCSBP was established to provide coverage for the survivor of a Reserve
Component (RC) Soldier who has completed 20 years of qualifying service for
retirement.  He further stated that after correcting the FSM’s retirement
points, his retirement points statement shows he completed 31 years, 2
months and
23 days of total service both qualifying and non-qualifying.  However, he
only completed 16 years, 10 months and 19 days of qualifying service for
retired pay benefits.  He further stated that because no discharge orders
could be found on the FSM, his retirement points statement was carried
through the date of his death.

7.  On 16 February 2005, the applicant was provided a copy of the HRC,
St. Louis advisory opinion and given the opportunity to reply to its
content.  To date, she has failed to respond.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way
for those who had qualified for reserve retirement but were not yet age 60
to provide an annuity for their survivors should they die before reaching
age
60.  Eligibility for RCSBP is based on completion of 20 qualifying years
for retirement purposes.

9.  Title 10 of the United States Code, section 12731 provides the age and
service requirements for entitlement to non-regular retired pay.  It
states, in pertinent part, that a member who has completed at least 20
years of qualifying service is eligible to receive retired pay at age 60
upon application.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for RCSBP benefits based on the death of her
husband, a FSM, was carefully considered.  However, by law, in order for
her to qualify to receive RCSBP benefits, the FSM had to complete 20
qualifying years of service for retirement purposes.

2.  The evidence of record in this case, as evidenced by the HRC St. Louis
advisory opinion and accompanying retirement points statement, confirm the
FSM completed only 16 years, 10 months and 19 days of qualifying service
for retired pay at the time of his death.  Therefore, regrettably, there
are no provisions of law that allow for payment of RCSBP benefits to the
applicant.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 December 2000.  Therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
27 December 2003.  However, she failed to file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MVT _  ___JTM_  ___LGH _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ___Margaret V. Thompson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005240                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/24                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  346  |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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